TEXAS COMMUNITY PROPERTY LAW: CONSERVATIVE ATTITUDES, RELUCTANT CHANGE JOSEPH W. MCKNIGHT* I INTRODUCTION Reform of Texas family property law has been significantly restrained by the conclusion of the Supreme Court of Texas in 1925 that the marital property system is constitutionally defined.' If the court felt that recourse to the state constitution was required to save the underlying doctrine of Texas marital property from being subverted by ill-conceived legislative efforts to improve the legal lot of married women,2 it may have been correct. A major tenet of the system was thereby preserved,3 and subsequent pressures for legislative change were removed due to reduced legislative power. Without the decision of 1925, however, the system could have been developed very differently. While Texans have gradually lifted most fundamental inhibitions by amending the constitution itself, the Texas Supreme Court's failure to formulate consistent principles of matrimonial property law has encouraged resort to statutory reform as the principal means of legal modernization. On its face, the Texas Constitution gave no hint of the interpretation put upon it in 1925. It seemed merely to define the wife's separate property.4 But before the language of the constitution was formulated in 1845, a correlative relationship between Copyright © 1993 by Law and Contemporary Problems *Professor of Law and Larry and Jane Harlan Faculty Fellow, Southern Methodist University. The author thanks his literary partner, William A. Reppy, Jr., for his advice in preparing this essay for publication. 1. Arnold v. Leonard, 273 S.W. 799 (Tex. 1925); Gohlman, Lester & Co. v. Whittle, 273 S.W. 808 (Tex. 1925); Cauble v. Beaver-Electra Refining Co., 274 S.W. 120 (Tex. 1925). The authors of the constitutional provision meant it to serve as a deterrent to legislative tampering with the rights of married women. See WILLIAM F. WEEKS, DEBATES OF THE TEXAS [CONSTITUTIONAL] CONVENTION 597, 601-02 (1846). But the judicial interpretation of 1925 greatly magnified the scope of the provision. 2. Prior to the early years of the twentieth century, the wife had almost no role under law in the control of marital property. Reform began in 1911, not by bringing her into the management of the community, but by authorizing her to become a sole trader on her separate account. See infra notes 70- 72 and accompanying text. Then, in 1915, the bulk of the wife's recovery for personal injuries-which had been all community property under prior case law-were reclassified as her separate property. 1915 Tex. Gen. Laws 251, § 1. This cutting back of the community continued in 1917 with legislation declaring rents and profits of the wife's separate property (as well as the husband's) to be separate. 1917 Tex. Gen. Laws 436, § 1; see infra text accompanying notes 79-80. 3. The Hispanic principle that the revenues from separate property are community had been statutorily abandoned in 1917. See supra note 2. 4. See infra note 31. LAW AND CONTEMPORARY PROBLEMS [Vol. 56: No. 2 separate and community property had existed.5 The Reception Act of 1840 had specifically defined the common estate of spouses as the property other than that 6 defined as their separate properties. The Act of 1848, from which all later definitions of community property were derived, stated the definition similarly7 and restored the Hispanic balance between separate and community property from which the 1840 statute had departed. After 1848 the small number of applicable statutes conformed to Hispanic principles and left only a few novel issues to be decided judicially by application of Anglo-American principles. As the draftsman of the constitutional definition and author of many of the early opinions on the subject,' the state's first Chief Justice, John Hemphill, forged the principal links between the Hispanic past and the future law. The evolution of the system can be divided into three major periods of development.9 The first period began with legislative perpetuation of the Spanish law of marital property during the 1840s and continued until 1913 with the courts maintaining full control of the system. The second period (which began in 1913 and ended in 1967) was active and chaotic, with the legislature and the courts both struggling to adjust the "constitutionalized" system to a changing society. The final period runs from 1967" - when gender discrimination was eliminated in a major reform-to the present. This last quarter century has been marked by vigorous efforts to deal with old and new problems, though little in the way of philosophical bases can be distilled from these developments. Texas spouses now enjoy some-but by no means unlimited" -freedomt in dealing with their marital property inter se, but neither the supreme court nor the legislature adheres to a pro-community or a pro-separate property stance. Over half a century ago, Professor Richard Powell, a major force in American property law and negative critic of the principle of community property, characterized the system as a "conservative power"12 of familial 5. 1839-1840 Tex. Gen. Laws 3, §§ 3-4, at 4, reprinted in 2 H.P.N. GAMMEL, LAWS OF TEXAS 177, 178 (1898). 6. Id. § 4, reprinted in 2 GAMMEL, supra note 5, at 178. 7. 1847-1848 Tex. Gen. Laws 77, § 3 at 78, reprinted in 3 GAMMEL, supra note 5, at 77, 78. 8. See Scott & Solomon v. Maynard, Dallam 548 (Tex. 1843); Smith v. Smith, 1 Tex. 621 (1846); Cartwright v. Hollis, 5 Tex. 152 (1849); Hollis v. Francois, 5 Tex. 195 (1849); Edington v. Mayfield, 5 Tex. 363 (1849); Wood v. Wheeler, 7 Tex. 13 (1851); Huston v. Curl, 8 Tex. 239 (1852); Christmas v. Smith, 10 Tex. 123 (1853); Wright v. Hays' Adm'r, 10 Tex. 130 (1853); Stramler v. Coe, 15 Tex. 211 (1855); Smith v. Strahan, 16 Tex. 314 (1856); Higgins v. Johnson's Heirs, 20 Tex. 389 (1857). 9. This same division is made in Joseph W. McKnight, Texas Community Property Law-Its Course of Development and Reform, 8 CAL. W.L. REV. 117 (1971), revised in ESSAYS IN THE LAW OF PROPERTY PRESENTED TO CLYDE EMERY 30 (1975). 10. The Matrimonial Property Act of 1967 became effective on January 1, 1968. The drafters' commentary on the proposed act is reprinted in Commentary to the MatrimonialProperty Act of 1967, 17 TEX. TEcH L. REv. 1319 (1986). 11. JOSEPH W. McKNIGHT & WILLIAM A. REPPY, JR., TEXAS MATRIMONIAL PROPERTY LAW 20 (1983) lists six possible provisions for characterization of property as community or separate that, under present law, would be void if included in an antenuptial contract or a similar contract between spouses. 12. Richard R.B. Powell, Community Property---A Critique of Its Regulation of Intra-Family Relations, 11 WASH. L. REv. 12,38 n.125 (1936) (quoting GEORGE MCKAY, A TREATISE ON THE LAW Page 71: Spring 19931 TEXAS COMMUNITY PROPERTY orientation. It is, but judicial attitudes in Texas have undergone a change of focus. From the early decisions of John Hemphill through the 1925 decision constitutionalizing marital property law, the apparent judicial goal was to preserve the old, Hispanic principles and thus to protect the wife's interest in the co-owned marital estate while giving her almost no role in its management. In recent decades, the Texas Supreme Court has faced a series of issues with no solution in the Hispanic past. Old Spanish law did not recognize divorce for postmarital causes; therefore, no traditional answers were provided for the questions posed by the increasing incidence of marital breakdown. Other new issues have arisen because the judiciary has had to deal with types of property interests, such as employees' retirement pension plans, that did not exist in the Hispanic legal setting. Until 1987, the Texas Supreme Court was, however, prevented by statute 3 from reviewing questions arising on divorce that did not pose precedential, statutory, or constitutional conflict, and the court was sometimes inclined to shield itself from consideration of such matters when it could use the statute to do so. Since 1925, the legislature has generally been conservatively inclined in addressing matters of family property law. Although in 1967 Texas was the first community property jurisdiction in the United States to eliminate gender discrimination from the laws of community management, the solution chosen is not now viewed as progressive. Texas's concepts of sole and joint management of community property" are built on the notion of two communities dating from 1913.15 None of the other eight community property states has followed Texas in removing gender discrimination from the rules of management in this way. All other community property states have chosen a partnership approach, 1 6 usually described as an "equal" management system. II STAGE I: ADOPTION OF THE COMMUNITY REGIME BY CONSTITUTION AND STATUTES WITH JUDICIAL RECOGNITION OF ITS HISPANIC ROOTS As a liberal response to the repressive attitude of English law toward the property rights of married women, in 1840 the Congress of the Republic of Texas enacted a definition of the elements of marital property law largely derived from Spanish doctrine embodied in the Louisiana Civil Code of 1825.17 The OF COMMUNITY PROPERTY § 73, at 65 (2d ed. 1925)). See also 4A RICHARD R. POWELL, REAL PROPERTY § 625[3] (1992). 13. TEx. GOV'T CODE ANN. §§ 22.001, 22.225 (West 1988). 14. As used here, as in Texas practice, the term "joint" management means that both spouses must act in concert to perform a valid act in relation to a particular property interest. See TEx. FAM. CODE ANN. § 5.22(b), (c) (West 1993); McKNIGHT & REPPY, supra note 11, at ch. 9.